In addition, the state can defeat the
defendant's claim of self-defense by proving one of the statutory
disqualifications to self-defense. The statute defining self-defense describes
certain circumstances in which a person is not justified in using any degree of
physical force in self-defense against another.

(One such / Another) circumstance
under which a person is not justified in using any degree of physical force in
self-defense against another is when (he/she) provokes the other person to use
physical force against (him/her).

In order to provoke the use of
physical force by another, it is not enough that the defendant by (his/her)
conduct elicited the use of physical force by another; rather the defendant must
have embarked upon such conduct with the specific intent to provoke the other
into using physical force and intending to cause the other physical injury or
death.

The defendant must have specifically
intended to provoke another into using physical force, and then used force to
defend (himself/herself) from the ensuing use of force by the person provoked.

It is important to remember that the
defendant has no burden whatsoever to prove that (he/she) did not provoke <insert
name of decedent/complainant> into using physical force against (him/her).
To the contrary, you may only reject (his/her) defense on the basis of this
statutory disqualification if you find that the state has proved beyond a
reasonable doubt that the defendant provoked the use of physical force by <insert
name of decedent/complainant> against (him/her).

(One such / Another) circumstance
under which a person is not justified in using any degree of physical force in
self-defense against another is when (he/she) is the initial aggressor in the
encounter with the other person, and does not both withdraw from the encounter
and effectively communicate (his/her) intent to do so before using the physical
force at issue in the case.

Under this provision, the state can
prove that the defendant was not justified in using physical force in
self-defense by proving beyond a reasonable doubt that (he/she) was the initial
aggressor in (his/her) encounter with <insert name of other person> and
that (he/she) neither withdrew from that encounter nor effectively communicated
(his/her) intent to do so before using physical force against <insert name of
other person>.

To prove that the defendant was the
initial aggressor in (his/her) encounter with <insert name of other person>,
the state need not prove that the defendant was the first person to use physical
force in that encounter. The initial aggressor can be the first person who
threatened to use physical force, or even the first person who appeared to
threaten the imminent use of physical force under circumstances.

To prove that the defendant did not
withdraw and communicate (his/her) intent to do so, the state must prove that
(he/she) did not abandon the conflict in such a way that the fact of (his/her)
withdrawal was perceived by <insert name of other person> so that <insert
name of other person> was aware that there was no longer any danger from the
original aggression.

It is important to remember that the
defendant has no burden whatsoever to prove that (he/she) was not the initial
aggressor or that (he/she) withdrew from the encounter and communicated
(his/her) intent to do so before (he/she) used physical force against <insert
name of other person>. To the contrary, you may only reject (his/her)
defense on the basis of this statutory disqualification if you find that the
state has proved beyond a reasonable doubt that (he/she) was the initial
aggressor, did not withdraw from the encounter, and did not communicate
(his/her) intent to withdraw before using physical force.

(One such / Another) circumstance
under which a person is not justified in using any degree of physical force in
self-defense against another is when the physical force is the product of an
illegal combat by agreement.

Under this provision, it is not
necessary that there be a formal agreement – such an agreement may be inferred
from the conduct of the parties. To infer such an agreement you must look at
all the circumstances leading up to and preceding the event in question as well
as all of the circumstances surrounding this event itself based on the entire
evidence presented and your own credibility assessments.

[<Include if the facts warrant:>
This exception would not apply despite an agreement for mutual combat if you
further find that its terms were violated by <insert name of
complainant/decedent> and that (his/her) conduct toward the defendant was in
violation of their agreement, and further that the defendant knew of such
violation. Violation means that <insert name of complainant/decedent>'s
use of force exceeded the terms of the agreement with the defendant, and that it
escalated beyond what had been agreed to as to either the extent or form of
combat.]1

It is important to remember that the
defendant has no burden whatsoever to prove that (his/her) use of physical force
was not the product of a combat by agreement. To the contrary, you may only
reject (his/her) defense on the basis of this statutory disqualification if you
find that the state has proved beyond a reasonable doubt that the defendant and
<insert name of other alleged combatant(s)> had engaged in combat by
agreement.
_______________________________________________________

The exceptions to justification in
§ 53a-19 (c) serve to negate justification because they involve factual
circumstances that disprove that the defendant was acting defensively, and apply
to all claims of defense or defense of others, regardless of the degree of force
used. See State v. Silveira, 198 Conn. 454, 470 (1986).

ProvocationIn order to provoke the use
of physical force by another, it is not enough that the defendant by his or her
conduct elicited the use of physical force by another; rather the defendant must
have embarked upon such conduct with the specific intent to provoke the other
into using physical force and intending to cause the other physical injury or
death. See State v. Hawkins,
19 Conn. App. 609, 616, cert. denied, 212 Conn. 820 (1989). Section 53a-19
(c) (1) also applies to the situation in which the defendant, intending to harm
the victim by retaliation, intentionally provokes the victim into using physical
force against the defendant by attacking a third party. Id., 617.

Initial AggressorThere is no legal definition
of "initial aggressor," so it is proper to instruct the jury to apply the
ordinary meaning of the words. State v. Ramos,
261 Conn. 156, 164-69 (2002); State v. Whitford, 260 Conn. 610, 620-24 (2002).

It is improper to define "initial
aggressor" simply as the first person to use force. State v. Jimenez,
228 Conn. 335, 341 (1994) (such an instruction forecloses the jury from
considering the claim of self-defense at all). In State v. Corchado, 188
Conn. 653, 666-68 (1982), the court included "directed verdict" language in
defining the "initial aggressor" as one who makes "any direct personal assault .
. . in anger" or one who "deliberately places himself in a position where he has
reason to believe his presence would provoke trouble" or as one who "leaves a
quarrel to go to his home to arm himself, and then returns to the scene of the
quarrel and kills the other person."

WithdrawalAn initial aggressor is justified
in using physical force if "he withdraws from the encounter and effectively
communicates to such other person his intent to do so, but such other person
notwithstanding continues or threatens the use of physical force." General
Statutes § 53a-19 (c) (2). "An instruction as to the effect of an aggressor
withdrawing from an encounter and communicating the intent to withdraw is only
necessary where the particular factual situation supports such an instruction."
State v. Diggs, 219 Conn. 295, 299 (1991). Further, the aggressor's
intent to withdraw must clearly be made known to his or her victim in order to
invoke the doctrine of communicated withdrawal. Id. In other words, the
initial aggressor must withdraw or abandon the conflict in such a way that the
fact of withdrawal is perceived by his or her opponent, so that the opponent is
aware that he or she is no longer in any danger from the original aggressor.
State v. Cartagena, 47 Conn. App. 317, 321 (1997), cert. denied, 244 Conn.
904 (1998).

Combat by agreementThe agreement need not be formal or
express, as long as there is any evidence to support a reasonable inference that
the participants agreed, either expressly or impliedly, to engage in combat.
State v. Silveira,
198 Conn. 454, 471 (1986); State v. Johnson,
53 Conn. App. 476, 480-82, cert. denied, 249 Conn. 929 (1999).